Monday, June 30, 2008

"Anti-realist" gives a quantitative version of his charge against Islam:

That said, of course there are still things in the text that a decent Christian will have trouble rationalizing. My claim is just that he'll have lot less trouble than a decent Muslim.

I think "decent" is a bit of a distraction here. I would interpret "decency" to refer to ordinary interpersonal morality, rather than ideology. Plenty of decent people believed and believe in the legitimacy of religious coercion. Some of them were saints. However, decent people can be a political or military threat. What we really want is an ideological transformation such that as many Muslims consider liberalism (broadly understood) as consistent with their ancestral faith as Jews or Christians do now.

If we substitute "liberal" for "decent", then we have a supply-side theory of illiberal religious exegesis. There are four kinds of exegesis of the texts: liberal Christian, illiberal Christian, liberal Muslim and illiberal Muslim, all of which exist, but with a negative correlation between liberalism and Islam. Anti-realist's theory is that this is because it is costlier to produce liberal Muslim exegesis (in cognitive dissonance or some other currency) than to accomplish the same trick for Christianity or Buddhism.

The alternative view would be that the greater relative salience of liberalism in Christianity is demand-, rather than supply- driven. On this view, cognitive dissonance is not a great obstacle to the religious beliefs of most people. For non-religious reasons, Christians want more liberal religious beliefs than Muslims do. If the forces making Christendom more liberal act in the Muslim world, they will (and have) increased the demand for liberal exegesis of the Qu'ran.

Sunday, June 29, 2008

"Anti-realist" and Marnie Tunay are having an argument about Islam in this comment thread. (As so often happens, the argument is tangentially related to the original subject of the post, which I think was about young offenders.) I wanted to weigh in, and hopefully a new thread will emerge.

Sciency types make fun of academic philosophy, often with reason. But sometimes it really does seem like conceptual work has to be done before we know what we are disagreeing about. So it is here. No one can really dispute that Islam-as-historical-phenomenon involves some unjustifiable violence and sexist oppression. On the other hand, the same can be said of Christianity and Buddhism. Scientific materialists have to explain away Stalin and Mao. Since the decision in WIC Radio v. Simpson, I can even point out that New-Agey Nietzschean post-Christians have some explaining to do.

And, at least in the context of Christianity, I can cite text. In addition to Augustine and Aquinas on religious coercion, there is the OT. Joshua made Mohammed look like a wimp. Opening randomly, I see Josuha 8:24-29:

When Israel had finished killing all the men of Ai in the fields and in the desert where they had chased them, and when every one of them had been put to the sword, all the Israelites returned to Ai and killed those who were in it. Twelve thousand men and women fell that day—all the people of Ai. For Joshua did not draw back the hand that held out his javelin until he had destroyed all who lived in Ai. But Israel did carry off for themselves the livestock and plunder of this city, as the LORD had instructed Joshua.

So Joshua burned Ai and made it a permanent heap of ruins, a desolate place to this day.

So what claim is "anti-realist" making about Islam?

As for Marnie, she claims that the law requires that the person who asserts a claim prove it. That is true -- at trial. But lawyers also have processes for striking pleadings or for giving summary judgment, where the person disputing the claim has to show that it is without merit. Ms. Donohue did not have to prove that her ginger beer had a snail in it, but only that it wasn't crazy to sue if it did. And it seems to me that if you are going to say that certain claims should be subject to legal sanction, you face as big a hurdle.

It also strikes me that one concept that seems completely inconsistent with the Qu'ran is invoking a secular norm of religious equality to prevent examination of the truth claims of religious practices. The idolators the Prophet railed against did not mind the worship of Allah -- they just thought Al-lat and the Sun and Moon should be respected as well. Certainly, no one should be permitted to offend their worshippers. It is easy to imagine the Meccan Human Rights Tribunal levying a stiff fine for aggressive monotheism.

Saturday, June 28, 2008

According to the Supremes it is OK for BC talk radio deity Rafe Mair to compare local anti-gay activist Kari Simpson to Hitler and the KKK. The trial judge thought there was an implication that Simpson approved of violence against gays and lesbians, which she doesn't -- however let Mair off on the basis of the "fair comment" defence. The Court of Appeal disagreed, thinking such allegations are beyond the pale, but the Supremes tell us that we might as well get used to unregulated twenty-first century discourse, because they're not going to do anything about us. Godwin's Law is not the law in Canada.

I tend to agree with the concurring justices that when a loudmouth compares another loudmouth to Hitler there really is no defamatory implication that the compared loudmouth wants genocide. But maybe I spend too much time on blogs.

Presumably, if there is an analogy between defamation against individuals and "hate speech" provisions about identifiable groups, then comparing Islam to fascism would be OK. Unfortunately, there is -- as yet -- no doctrine of fair comment in the tribunal jurisprudence.

Thursday, June 26, 2008

In the comments, "anti-realist" argues it is false that Osama bin Laden's actions are contrary to Muslim principles.

I respond:

The trouble with your point is that it is TOO realist about "Islam" as an entity. When someone says, "Bin Laden has nothing to do with real Islam", they are not making an empirical assertion. They are engaging in a speech act. They are saying, "Muslims ought not to engage in violence against innocents, and those aspects of the Islamic tradition that assert this should be emphasized in comparison to those which do not."

Saying this speech act is false is like saying "give peace a chance" is false (or "unite against the oppressors of our people" is false). It is a category mistake.

The real objection to Bush is that "Bin Laden is not a true Muslim" is a speech act only available for an insider.

As Uncle Karl would say, "The non-Arabic-speaking bloggers have interpreted Islam in various ways. The point, however, is to change it."

Thursday, June 19, 2008

A while back, Andy suggested I should comment on the House of Lords' decision in OBG Limited. I did read it, but then got off on a tangent about inducing-breach-of-contract, which is as tangential to the main decision as products-liability law is to the plot of Strange Brew.

The classic common law is a very market-oriented thing. And so, in general, it does not protect against competitive injury. And If A failed to perform her contract with you, it encouraged you to sue A, not somebody else who may have caused the dealbreaking. However, there are murky exceptions in the form of the "economic torts," most of which were used to deal with the nascent British Trade Union movement, although the odd shady opera promoter was manhandled as well.

Lord Hoffman does a bang-up job of going through the cases and extracting the principle that P can sue D if D intended to harm D and did so using illegal means. Although that tedious British analytic philosophy comes in handy as his lordship sets out what "intention" means here, with much less fuss than our courts are prone to.

Lord Hoffman and Lord Nicholls of Birkenhead get into a bit of a set-to over the scope of illegal means. Lord Nicholls wants to include any violation of statute, while Lord Hoffman is only interested in common law wrongs against third parties. So if I decide to improve my share of the widget market by scaring your customers with guns, or blowing up your suppliers' widget factory, Lord Hoffman would let you sue me. But if I just violate the EU Widget Manufacturing and Distribution Directive, I won't face worse than the penalty the public law has in store for me.

The Pithlord agrees with Lord Hoffman here. If something that was legal at common law is made illegal by the will of the politicians, then it is to the will of the politicians we should look for the consequences. If they didn't think to put in a civil right of action, then there is no reason for one. In Saskatchewan Wheat Pool, our highest court (rightly, in my view) rejected the idea that breach of statute was inherently actionable. However, Sask. Wheat Pool also says that compliance/non-compliance with a regulatory standard can be presumptively persuasive evidence of whether the defendant acted "reasonably". So too, it may be that some modern statutes (at least those that have clear victims) can help give content to what is trespass, battery or assault. With that caveat, though, I'm on Lord Hoffman's side.

On the other major disagreement, on whether conversion can apply to choses in action, I have to prefer Lord Nicholls. OBG Ltd. was mistakenly put into receivership: the defendant took over all its property and all its contractual rights. The question was whether OBG could sue for damages. If someone takes your property (even innocently, but without your consent), then you can sue. What about "taking" your rights under contracts? It seems to me that these are essentially the same: they are my stuff. Only real law nerds even know whether bank deposits, for example, are contractual rights/choses in action or personal property. As Lord Nicholls points out, if intangible rights are represented in a document, and the document is appropriated, then there can be a suit in conversion. On this point, the majority of the Law Lords seem to just engage in reactionary fear of any change at all, rather than reasoned response.

Tuesday, June 17, 2008

Donoghue v. Stevenson is maybe the most famous common law case ever (even though it wasn't under the common law, arising as it did out of Scotland, and wasn't really a case, being decided on the pleadings). It inspired the sub-plot in Strange Brew, in which Bob and Doug attempt to get a case of beer by pretending they found a mouse in their stubbie (this leads them to get a job at Elsinore Brewery, leading in turn to their defeat of a plot by Max von Sydow to take over the world through psychoactive substances in beer. Psychoactive substances in fried chicken was the plot in Undercover Brother.)

Miss Donoghue alleged that she found a snail in a bottle of ginger beer manufactured by the defendant. The House of Lords overruled a 19th century precedent holding that manufacturer liability for latent defects causing personal injury could only be brought in contract -- thereby screwing over ultimate consumers who rarely had direct contracts with manufacturers. The Pithlord does not dispute the justice of this result.

However, I have never been fond of Lord Atkin's attempt to generalize. He shows a marvelous sense of Biblical rhetoric, but demonstrates serious conceptual confusion of the kind one would expect from an American judge.

Rolling the tape [1932] A.C. 562 at p. 580:

At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in other systems as a species of "culpa," is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

In this short passage, Lord Atkin distinguishes and then confuses both acts and omissions and moral and legal duties. He uses the term "injury," which sounds like harm-regardless-of-right, but brings to a lawyer's mind the phrase "damnum sine injuria ," which emphasizes that some interests are necessarily not legally protected. He presents the remarkable (and false) claim that there must be a general formula for liability in negligence as something he will at present content himself with. It is also wrong that the legal duty is always more limited than the moral one, since it is sometimes more extensive. As an attempt to make a general formula for negligence law, Lord Atkin's dictum is even worse than Anns.

So why does the passage resonate as much as it seems to? I think it is because of the interesting reversal of Christian theology. There is an overt reference to the tale of the Good Samaritan, and an implicit one to the contrast between law and grace in Romans. The relationship with Jesus's parable is interesting. Atkin invokes the universalism of Luke 10 in favour of an expansion of tort liability, while recognizing that as a coercive force, the law is always on the side of Pilate.

Update: The confusion between moral and legal duties arises in the definition of neighbours as "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation..." "Ought" here either means a moral "ought" or a legal "ought". But if it is a moral "ought", then he has just confused moral and legal duties again. And if it is a legal "ought", the definition is circular.

The same sentence has him go back and forward between "affected by my act" with no mention of omission and "the acts or omissions which are called into question." It is surely correct that omissions can sometimes give rise to liability. It is surely wrong that they give rise to liability whenever acts would.

Wednesday, June 11, 2008

Russell Arben Fox has done what the Pithlord has not, and read the Bouchard-Taylor report. Keeping up a somewhat Canadian theme, he has interesting reflections on Red Toryism in light of all the "whither the right" talk going on in the Great Republic right now.

One thought I had (and it is hardly original) is that we do live in George Grant's world as well as Francis Fukuyama's in the following sense: the only meaningful opposition to capitalism is conservative or reactionary. It is easy enough to oppose capitalism on the ground that as a result of its subversive and out-of-control dynamics, everything solid melts into air. It is absurd to oppose it on the grounds that it fetters the development of the forces of production.

We can be conservatives -- upholding some existing institution (possibly even biological humanity) against the trinity of individualism-science-markets. We can be reactionaries, deciding it is all too late anyway. Or we can be libertarians and decide the future's so bright we have to wear shades.

At the same time, it does not seem that any viable political coalition can be based on being consistently conservative or consistently libertarian. The trade union and lifelong marriage both seem doomed, but no one is really going to defend or oppose them both (except for intellectual circles as politically irrelevant as the reactionaries who refuse political engagement on principle).

Sunday, June 01, 2008

The Pithlord is two weeks behind in reacting to R. v. D.B.. When seventeen, D.B. got in a fight with another adolescent male, and left him for dead. He was charged with manslaughter. Five of the Red Nine struck down the presumption that young offenders will face certain serious violent offences in adult court. The rule now is that the Crown carries the burden of persuading a judge that adult court is the appropriate place.

My excuse, if any, is that the argument seems predestined to follow a very familiar series of steps. Populist critics will point out that the electorate views the current structure as too lenient on young offenders. The Court Party will respond by saying that the rule of law and individual rights are too important to be left to the hoi polloi. We seem to have an unresolvable dispute between government by experts and government by public opinion. All too familiar for any country that has judicial review of legislation. The tendency is just to move along, like you would when you see some hip hop kid in a mall simulatenously answering his cellphone and yelling at his girlfriend.

Except if you read the majority judgment, you come upon a paradox. The Court itself claims to be acting on the basis of a "societal consensus" -- in other words, public opinion. We are told that it is the social belief that youth and inexperience is a mitigating factor in criminal culpability that justifies what the Court is doing. The Charter itself is silent on the matter.

It is probably true that the weakest form of the principle of youth-as-mitigating-factor would get a large amount of support. The difficulty with this move is that the recognition of youth as a sometimes-mitigating factor is compatible not only with the system of presumptive offences, but even with abolishing the separate youth system altogether. A person could coherently think that youth is mitigating for minor crimes, but not for major violent ones. And since manslaughter has no minimum sentence, even a judge in adult criminal court would be entitled to take into account D.B.'s tender years and raging hormones.

What we (including Supreme Court of Canada justices) disagree about is not the principle, but the weight that should be given to that principle. On that question, the empirical evidence is that the people think too much weight is given to that principle, relative to the competing considerations of retribution, deterrence and so on.

More generally, the fact that there is a consensus that X (pateint autonomy, youth-as-mitigation) is an important consideration is never evidence that there is a consensus that X is the only consideration. And the courts themselves never treat X as the only consideration: they always end up "balancing" it against something else. But if they are "balancing" and the politicians are "balancing", why are the unstable political coalitions of nine lawyers in Ottawa entitled to greater respect than the unstable political coalitions of ... elected politicians?

That's not just a rhetorical question. In some cases, there is an answer -- democratic political processes may be inferior to oligarchic forensic processes on certain important questions.

The trouble is that the judiciary tends to intervene precisely where it is their own work that is being reviewed. The public is unhappy with criminal sentencing, particularly of juveniles, because it is done badly and erratically.